Thoughts of an activist lawyer

Binay prevails

Kudos to Makati City Mayor Jun-Jun Binay for winning his legal battle against DILG’s Mar Roxas and the Office of the Ombudsman. Just last Monday, the Court of Appeals made permanent its earlier temporary restraining order which seeks to maintain the status quo. This time, the Appeals Court clarified that the status quo meant the situation prior to the service of the Ombudsman’s suspension order on the Mayor. This removes any and all doubts that the CA intended to maintain Mayor Binay in office despite the Ombudsman’s suspension order. This hence debunks the view of Justice Secretary Leila De Lima, who earlier opined that the CA’s TRO was moot and academic because meanwhile, the suspension order had allegedly already been served.

I admittedly am not a big fan of the Philippine legal system. There’s the dismal 1-percent conviction rate for extra-legal killings before Philippine courts. There is the longest period of time in the world by which cases are heard by the courts, an average of five to seven years. There too is the perception of corruption amongst the ranks of public prosecutors and judges. But all told, the decision of the CA granting Mayor Binay injunctive relief was well-reasoned and consistent with jurisprudence. In brief, the CA ruled that since Mayor Binay had already been re-elected after the so-called City Hall Annex scam, all of his administrative liability, if any, is deemed extinguished by reason of his re-election. This is the principle of “condonation” and is premised on the fact that the people are sovereign. This is not a novel theory having been first recognized by the Supreme Court in the case of former Cagayan Governor Aguinaldo, and reiterated in the cases involving Governors Garcia and Salalima, all of whom were sought to be suspended similarly as Binay. This is why the principle is referred to as the “Aguinaldo rule”. The logic of the principle is that since the electorate decides who will serve them in an elective capacity, an erring official who has been re-elected is deemed “forgiven” by his constituents when despite the administrative lapse, he is re-elected. The Ombudsman’s position, mirrored by De Lima, is that the office has plenary powers to suspend officials which according to its legislative charter, is immediately executory and not subject to injunction. Here, the CA reasoned that there’s a difference between a suspension by way of penalty meted by the Ombudsman, and a preventive suspension preparatory to an administrative investigation. The former is immediately executory and not subject to injunctive relief. The latter though, and this is the suspension meted on Binay, is subject to judicial review. I find myself in accord with the line of reasoning adopted by the CA. In fact, in a case that I personally argued before the Supreme Court which sought to restraint the House leadership from filing an impeachment complaint against then-Chief Justice Hilario Davide, the Supreme Court, through the incumbent Ombudsman, ruled that our Court’s certiorari powers under the 1987 Constitution have “cut the umbilical cord” between Philippine and American jurisprudence. While American courts can opt to exercise judicial restraint, Philippine courts, under the 1987 Constitution, must decide cases involving alleged grave abuse of discretion amounting to lack of jurisdiction. This means that our courts must always exercise jurisdiction where there is an allegation of grave abuse of discretion. This was the allegation of Mayor Binay and hence, the duty of the Court of Appeals to decide. The victory is temporary. In fact, the Supreme Court has already scheduled oral arguments on the petition of the Ombudsman against the CA’s order. What appears to be going in favor of Mayor Binay is the fact that the Ombudsman sought but was denied injunctive relief to restraint the CA from restraining the office from suspending Mayor Binay. The Court’s refusal to issue a TRO, although not a ruling on the merit, nonetheless is tantamount to recognizing the validity of the CA’s actions thus far. While the odds are still against Mayor Binay since the Ombudsman was a former colleague of the incumbent Justices of the Supreme Court, the latters denial of the former’s prayer for TRO is recognition that there is no urgency nor an irreparable injury in the event the CA is not restrained. Congratulations are this in order to Mayor Binay and his legal team! ** ** Congratulations too to the UP Law’s Moot Court team that won the world championship in the recently concluded Freedom of Expression Moot competition in Oxford University. The team bested over a hundred teams worldwide that competed in Oxford and in various regional championship rounds around the world. The problem of the moot is of extreme relevance to freedom of expression in today’s Internet age. Could states limit the freedom to curtail hate speech that has led to a riot that injured over a hundred individuals? At issue, too, was whether Internet service providers should incur liability for materials posted through them. The winning team is composed of Pauline Gairanod (adjudged the best speaker), who hails from Zamboanga City, Modesta Chungalao from Baguio City, Gil Anthony Aquino, Raphael “Apa” Pangalangan, Rachel Miranda, and Gemmo Fernandez. A testimonial in their honor will be held on Monday 10AM with no less than Chancellor Micheal Tan in attendance. Good job, team!